Bombay High Court
Kumaran Subbiya Konar vs The State Of Maharashtra on 23 September, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:39942-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.886 OF 2023
Kumaran Subbiya Konar .....Appellant
Versus
The State of Maharashtra .....Respondent
.....
WITH
INTERIM APPLICATION NO.4821 OF 2024
IN
CRIMINAL APPEAL NO.886 OF 2023
-----
Mr. Veerdhawal Deshmukh, Advocate (appointed) for the Appellant.
Ms. Sharmila S. Kaushik, APP for the Respondent-State.
-----
CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 11th SEPTEMBER 2025
PRONOUNCED ON : 23rd SEPTEMBER, 2025
JUDGMENT :
[PER SARANG V. KOTWAL, J.]
1. The Appellant has challenged the judgment and order
dated 28.4.2022 passed by the Additional Sessions Judge, Greater
Mumbai in Sessions Case No.534/2015. The Appellant was
convicted for commission of the offences punishable under Section
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Deshmane(PS)
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302 of IPC and under sections 37 read with 135 of the Maharashtra
Police Act. For the offence punishable under Section 302 of IPC, he
was sentenced to suffer life imprisonment and to pay a fine of
Rs.1,000/- and in default to suffer RI for six months. For the offence
punishable under Section 37 read with Section 135 of the
Maharashtra Police Act he was sentenced to suffer RI for six months
and to pay a fine of Rs.500/- and in default to suffer SI for one
month. All the substantive sentences were directed to run
concurrently. The Appellant was arrested on 1.4.2015 and since then
he is in custody. He was granted set off under Section 428 of Cr.P.C..
2. Heard Mr. Veerdhawal Deshmukh, learned appointed
counsel for the Appellant and Ms. Sharmila Kaushik, learned APP for
the Respondent-State.
3. The prosecution case is that the deceased Kajal was
earning her livelihood through prostitution. The Appellant was
interested in her, but, she showed interest in one Kamal Bahadur
Singh. The Appellant was against that relationship and out of
jealousy he committed her murder on 31.3.2015 at about 9.15 p.m.
in Kamathipura area in the presence of the eye witnesses. He slit her
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throat with a knife and fled away from the spot. The FIR was lodged
by a friend of the deceased vide C.R. No.140/2015 at 10.10 p.m. at
Nagpada police station, Mumbai. The Appellant was named in the
FIR. The investigation commenced. He was immediately arrested in
the night itself. The statements of the eye witnesses were recorded.
The dead body was sent for postmortem examination. At the
instance of the Appellant, a knife was recovered. The articles were
sent for Chemical Analysis. At the conclusion of the investigation, the
charge-sheet was filed and the case was committed to the Court of
Session.
4. During the trial, the prosecution examined twelve
witnesses, including three eye witnesses who knew the deceased and
were her friends. The other witnesses were the panch witnesses, the
Medical Officer and the Police Officers.
5. The defence of the Appellant was of total denial. He did
not lead any defence evidence.
6. The learned trial Judge considered the evidence on
record and the defence of the Accused/Appellant. He heard both the
sides. The learned Judge relied on the evidence of the eye witnesses
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and recovery of weapon at the instance of the Appellant. Based on
this evidence, he convicted and sentenced the Appellant as
mentioned earlier.
7. There are three eye witnesses in this case. PW-1 Pinki
was the first informant and the main witness. She has stated that
she knew the deceased Kajal who was earning her livelihood through
prostitution. She deposed that she knew the Appellant before the
Court. He used to visit the deceased Kajal. He had informed that he
was a Bank Manager. On the date of incident at about 9.30 p.m.,
PW-1 along with the deceased Kajal and three other friends including
PW-8 Sheetal were standing near Alexandra Theater. They were
looking for some customers. They went to a tea stall of one Mr.
Bhatt. PW-1 noticed that Kajal had some heated telephonic exchange
with someone.. After sometime, the Appellant came there. He
caught Kajal's hair and pulled her head. He gave three blows of knife
on her neck. He then ran away. Somebody informed the police. They
came on the spot and took Kajal to J.J. Hospital. She succumbed to
her injuries. PW-1 went to Nagpada police station and lodged her
FIR, which is produced on record at Exhibit-10. PW-1 identified the
knife shown to her in the Court. According to her, at the time of
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incident the Appellant was wearing a blue-coloured shirt and a blue
coloured jeans. She identified both these clothes produced in the
Court.
In the cross-examination, she stated that she was from
Jharkhand but she did not have the documentary proof to that effect.
Nagpada police station was a five-minute walk from her house. She
was knowing the deceased Kajal for about one year. Kajal was from
Bangladesh. PW-1 did not know the details regarding all the
customers of Kajal. PW-1 knew Kamal Bahadur Singh and she had
seen him with Kajal. He used to work at a Chinese Food Stall in
Kamathipura area. Her attention was drawn to her statement in the
FIR that Kajal was staying with Kamal Bahadur Singh as they were in
love relationship. She admitted that she had stated so before the
police, but, in her cross-examination she denied that Kajal was
having love relationship with Kamal Bahadur Singh and that he used
to reside with Kajal. Except this contradiction, rest of her FIR
sufficiently corroborates her deposition. She further admitted in her
cross-examination that she was prosecuted by the police on several
occasions and she had been detained in jail for about two years. She
knew some of the police officers from Nagpada police station. She
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denied the suggestion that because of fear of prosecution against her
for prostitution she was deposing in favour of the police. She further
stated that the incident was going on for about 10-15 minutes. She
did not try to save the deceased because the Appellant was armed
with a knife. About 100 persons had gathered at the spot. After the
incident, the Appellant went towards Mumbai Central. He had
carried the knife with him. It was shown to her by the police at the
police station. She reiterated that she had seen that knife in the
hands of the Appellant at the time of the incident. According to her
she had stated before the police that the Appellant had given three
blows of knife on the neck of the deceased. However, the FIR did not
mention that there were three blows though it specifically mentions
that he slit her throat. She denied the suggestion that she identified
the Appellant on the say of the police.
8. PW-2 Ruby was another eye witness. She was also
similarly working in Kamathipura area as PW-1. She deposed that
the incident took place in 2015 during summer. It was around 9.00
p.m when the incident took place. She along with PW-1, the
deceased Kajal and two other friends were standing on the main road
near Alexandra Theater at Nagpada. They were having tea. Kajal
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was sitting on the road below a tree near the tea stall. At that time,
the Appellant came there from behind, pulled her hair and gave
three blows of knife on her throat. PW-2 specifically named him in
her deposition. The Appellant then ran away. Kajal collapsed on the
road. She further deposed that she had seen the Appellant visiting
Kajal and that Kajal had told her that the Appellant was her husband.
She identified the Appellant in the Court. According to her, the
Appellant was wearing a blue shirt and a blue jeans pant at the time
of the incident. She identified the clothes in the Court.
In the cross-examination, she denied the suggestion that
she was from Bangladesh. Her place of residence was a one- minute
walk from Nagpada police station. She admitted that she had visited
Nagpada police station on various occasions. She was asked to
describe the Appellant in the Court without looking at him. She
described him to some extent. However, this line of cross-
examination did not lead the defence anywhere.
According to her, since the Appellant had visited their
brothel to meet Kajal for 4-5 times, PW-2 knew him and also knew
his name. The portion of her statement was shown to her wherein
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she had mentioned before the police that PW-1 Pinki had told this
witness (PW-2) that the Appellant had assaulted the deceased and
that he was having love relationship with the deceased. However,
PW-2 denied having stated so before the police. She could not say in
which direction the Appellant had run away. She further stated that
since the accused was holding a knife, no one went to help Kajal.
9. PW-8 Sheetal was another eye witness. She deposed that
she was earning her livelihood in the same manner as that of PW-1
and PW-2. Their area of work was near Alexandra Theater, Nagpada.
She deposed that on 31.3.2015, at about 8.00 p.m., she reached that
footpath. The deceased and PW-1 were already there. They went to
a tea stall, and PW-8 herself went to another shop to place an order
for a lassi. Around that time, she heard a scream. She looked back
and saw the deceased lying on the ground below a tree. One person
had caught her by one hand. He had a knife in his other hand. When
the crowd gathered, that person ran away from the spot. Within 15-
20 minutes, the police came to the spot. She identified the
Appellant in the Court. She stated that she could not forget the
horrific incident and the face of the assailant. She identified the
clothes of the Appellant produced in the Court.
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In the cross-examination, she was asked about her
identity card. According to her, after the incident she went to the
police station after three days with PW-1 and PW-2. At that time her
statement was recorded. She could not explain as to why her police
statement did not mention that she had seen Kajal lying on the
ground below a tree and that after 15-20 minutes the police arrived
at the spot. She could not explain why her police statement did not
mention the fact that she could not forget the incident and face of
the assailant, though she had stated so before the police. She was
about 30 ft away from the spot of incident when the incident took
place. She could not say in which direction the assailant ran away.
10. PW-5 Dr. Chikhalkar was the Medical Officer, who
conducted the postmortem examination. The deceased had suffered
the following injuries:
1. Incised wound anteriorly over the neck directed
horizontally from left to right side of midline of neck at
the thyroid cartilage level, 13 cm x 6 cm x tracheal deep
cutting the left common carotid artery, trachea, thyroid
cartilage, neck muscles and tissues with clean cut margin
with tailing on the right side, esophagus intact. Right
carotid sheath intact,
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2. Incised wound with clean cut margins over the right
thenar eminence obliquely directed, 2 cm x 0.5 cm
muscle deep.
3. Incised wound over base of distal pharynx of left thumb,
1 cm x 0.5 cm muscle deep with clean cut margins,
4. Multiple old healed horizontally situated scar marks of
varying length from 4 cm x 6 cm over 1/3 rd middle of
left forearm."
. The cause of death was hemorrhage and shock due to cut
throat injury (unnatural). In the cross-examination, he denied the
suggestion that injury No.1 was possible in a case of accident or that
the injury No.4 could be an self-inflicted injury.
11. PW-4 Baby Pal was a pancha for inquest panchnama. His
evidence is not very material in view of the medical evidence led by
the Medical Officer.
12. PW-3 Akhtar Hashmi was a pancha for recovery of knife
at the instance of the Appellant on 3.4.2015. He deposed that on
3.4.2015 he was called at Nagpada police station at about 12.15
p.m.. The police asked him where he had kept the knife. The
Appellant told the police that he was willing to show the place where
he had kept the knife. The panchnama was prepared. This witness
had identified the panchnama. Then they went towards the
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Alexandra Theater, Nagpada. The Appellant led them towards an
MTNL box on the road. There was a gap between that box and the
wall on the road. The Appellant put his hand in the gap and took out
a knife with a wooden handle. It was wrapped in a paper. The paper
and the knife were blood stained. The police seized the knife and
concluded the recovery panchnama at 2.00 p.m.. He identified his
signature on the panchnama. It is produced on record at Exhibit-13.
He identified the knife. Inspite of this clear evidence in favour of the
prosecution, the learned APP sought permission to cross-examine
him. It was noted that the witness was hostile. The learned Judge
granted permission to the learned APP to cross-examine this witness.
In the cross-examination, he deposed that the Appellant
had said in the presence of this witness that he was willing to show
the place where the weapon was kept. Perhaps the prosecution
wanted to show that police had not asked this witness about his
disclosure sentence but he had stated so on his own.
In the cross-examination conducted on behalf of the
Appellant, this witness was asked whether he had worked as a
pancha for Nagpada police station in more than fifty cases. To this
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specific question, this witness did not give any answer. He further
deposed that he knew the accused as the accused was his neighbour..
The memorandum panchnama and the recovery panchnama are
produced on record at Exhibits-13 and 14.
13. PW-6 Ganesh Gaikwad was a pancha witness in whose
presence the clothes of the accused were seized. He admitted in the
cross-examination when he went to the police station the clothes
were already kept on the table. Therefore, this piece of evidence
does not help the prosecution case. In any case, the blood stains were
not detected on his clothes. Therefore, this piece of evidence can be
discarded.
14. PW-7 Head Constable Sanjay Ghadge had carried the
muddemal articles to FSL for chemical analysis.
15. PW-9 Tajuddin Malik was serving with the police. He
deposed about the circular issued by the Deputy Commissioner of
Police dated 2.3.2015 for prohibiting possession and use of weapon
in that area at the relevant period. He produced that circular on
record at Exhibit-52. According to him, this circular was displayed
on every street-wall for bringing it to the notice of the public in
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Nagpada vicinity.
16. PW-10 PI Kishor Shinde had arrested the Appellant. He
and his team went to Mumbai Central Railway Station with the help
of informant. PW-10 Kishor Shinde arrested the Appellant in the
night of 31.3.2015. He seized the clothes of the Appellant.
17. PW-11 PSI Vasant Jadhav was the next investigating
officer. He deposed about receiving wireless message regarding the
incident. He and another police inspector went to the spot. He
supervised the conduct of inquest panchnama. According to him,
one Kamal Bahadur Singh was accompanying the deceased who
claimed that he was residing with the deceased as husband and wife.
He seized the clothes of the deceased.
18. PW-12 DCP Kusum Waghmare was attached to Nagpada
police station as a Woman PI at the time of incident. She was on
night duty. She conducted part of the investigation. She registered
the FIR. She conducted the spot panchnama. It is produced on record
at Exhibit-61. She supervised the recovery of a weapon at the
instance of the Appellant. She deposed about the willingness shown
by the Appellant to show the spot where he had concealed the knife.
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Pursuant to his statement made before the panchas, the knife was
recovered. This witness sent the articles for chemical analysis. She
handed over the investigation to PI Kadam who filed the charge-
sheet on completion of the investigation.
In the cross-examination, she stated that when she
reached the spot, the eye witnesses, namely, Pinki and Ruby were
present there. She made inquiries with them. She did not find any
CCTV installed around the spot. She proved the contradictions and
omissions from the statements of the witnesses.
19. Besides this oral evidence, the prosecution produced the
C.A. reports before the Court. It showed that the blood found on the
clothes of the deceased was of 'O' Group. The knife showed the
presence of human blood but the blood grouping was inconclusive.
20. The learned counsel for the Appellant made the following
submissions :
i. PW-1 was acting at the behest of the police. She had admitted
that she was prosecuted in the past and hence she was under
the thumb of the police.
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ii. PW-2 was not knowing the Appellant as is clear from the
contradiction brought out on record from her police statement.
Even PW-8 did not know the assailant.
iii. The Test Identification Parade was not held, and though she
claims that she could not forget the incident, the investigating
agency needed to conduct the Test Identification Parade to fix
the identity of the Appellant.
iv. The prosecution has not examined Kamal Bahadur Singh who
was the main person involved in the entire episode.
v. The motive behind this crime is not clearly brought on record
by the prosecution.
vi. The recovery of knife is extremely doubtful. The pancha for
the recovery of knife was a habitual pancha. The police officer
and the pancha both have not given clear and reliable evidence
in respect of recovery of knife. Though the knife showed
presence of blood, it did not show that it was of 'O' blood
group, which was the blood group of the deceased. The clothes
of the Appellant did not show the blood stains.
vii. The presence of PW-2 is not mentioned by PW-1 and PW-8.
There are material omissions from the evidence of PW-8.
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viii. There is a reference to the phone call just before the incident,
but, there is no investigation in that behalf.
ix. The clothes of the Appellant were already kept on the table.
Therefore, the seizure of the clothes and identification of those
clothes in the Court is doubtful.
21. On the other hand, the learned APP submitted that the
evidence of the eye witnesses is sufficient to prove the case against
the Appellant. They have consistently narrated the incident. There is
no contradiction in the description of the actual incident. All of them
are the natural witnesses because their area of work was around the
same place and the deceased was also working in the same area. The
eye witnesses and the deceased were together when the incident
took place. There is a corroborative evidence in the form of recovery
of knife. There is a motive for commission of this crime as the
Appellant did not approve of the relationship between the deceased
Kajal and Kamal Bahadur Singh. Thus, the prosecution has proved
its case beyond reasonable doubt based on all this evidence.
22. We have considered these submissions. In our opinion,
the most important evidence in this case is that of PW-1. Though
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she has admitted that she was working in the same area and was
indulging in prostitution and had admitted that she was detained in
jail for about two years that by itself is not a reason to discard her
evidence at all. In fact this shows that she was giving her deposition
honestly without hiding any unfavourable or inconsistent facts. The
main feature of her evidence is that she was the first informant and
the FIR was lodged immediately after the incident. The incident had
taken place at about 9.15 p.m. and the FIR was lodged at 10.10 p.m.
in the same night on 31.3.2015. The FIR specifically mentions the
Appellant's name. There was no time gap to concoct a false story
and to implicate the Appellant falsely. PW-1 was a natural witness.
She was working in the same area. The deceased was also working in
the same area. Their area of operation and timings were the same.
We do not find any infirmity in her deposition at all. There is only a
minor contradiction as to whether the deceased was residing with
one Kamal Bahadur Singh. But that contradiction does not go to the
root of the matter. She has described the incident clearly. She has
named the Appellant as the assailant. Her evidence is supported by
the medical evidence. Therefore, we find that her evidence is of
sterling quality and she is a reliable witness. She has also deposed
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about the presence of PW-8.
23. Though the learned counsel for the Appellant submitted
that PW-1 did not mention the presence of PW-2, it is not necessary
that the first informant should have named the every other eye
witness in her deposition or in her FIR. In fact, her FIR does mention
the presence of PW-2. Therefore, the defence cannot take advantage
of the fact that she had not specifically referred to PW-2's name in
her deposition to claim that PW-1 had not witnessed the incident at
all. Therefore, on the basis of her evidence alone the prosecution is
successful in proving the case against the Appellant.
24. In addition, there are two other eye witnesses, namely,
PW-2 Ruby and PW-8 Sheetal. PW-2 Ruby has named the Appellant
in her deposition. Her police statement mentions a portion that PW-1
had told her the name of the assailant as that of the Appellant.
Therefore, there could be an indication that she was not aware of the
name of the Appellant. She identified the Appellant before the
Court. The Test Identification Parade was not held to enable her to
identify the Appellant. Therefore, from her evidence it appears that
she had seen the incident but she might not be aware of the identity
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of the Appellant. She has identified the Appellant before the Court,
but, her evidence was recorded on 13.2.2019 i.e. after about four
years from the incident. Therefore, we are of the opinion that the
evidence shows that she had seen the incident but it would not be
safe to rely on her evidence to conclude that she knew the identity of
the assailant. Therefore, her evidence is not wholly reliable in
support of the prosecution.
25. PW-8 Sheetal is another witness. She fairly stated that
she was in the vicinity when the incident took place. She turned
around when she heard a scream; at that time she saw one person
holding hair of the deceased in one hand and a knife in the other.
She identified the Appellant in the Court. Her evidence was
recorded on 20.9.2021 which was more than six years from the
incident. Hence, it would not be safe to rely on her capacity to
identify the Appellant in this case.
26. The only other piece of evidence is of recovery of knife at
the instance of the Appellant. PW-3 was declared hostile. He
initially stated that when he went to the police station, the police
officer asked the accused as to where he had kept the knife. That
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was the only reason why he was declared hostile because according
to the prosecution the accused on his own had stated in presence of
the panchas that he wanted to disclose where he had kept the
weapon. The memorandum statement was recorded in presence of
the panchas. This contradiction will not make any difference to the
quality of the evidence of recovery because the fact remains that the
Accused/Appellant had made a statement to show his willingness to
produce the knife from where he had concealed it. The other
criticism of his evidence is that there was a possibility that he was a
habitual pancha for the police. In that context PW-3 was asked
whether he had acted as a pancha for more than fifty cases and the
pancha had avoided to answer that question. But it has to be noted
that in the same cross-examination he stated that he had not given
evidence as a pancha in any other Sessions Case except in one case.
Therefore, the defence has not established that he had acted in many
cases as a pancha and that he was a habitual pancha for the police.
Even the police officer had not accepted that PW-3 was a habitual
pancha. Therefore, we do not see any reason to discard the evidence
of recovery of weapon. The weapon was concealed at a spot that was
within the exclusive knowledge of the Appellant; from where it was
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later taken out. It showed the presence of blood stains.
27. The prosecution through the evidence of PW-9 has led
reliable evidence about existence and publication of the Prohibition
Order in respect of possession of arms in that area during the
relevant period.
28. Thus, from the above discussion we are of the opinion
that the evidence of PW-1 is absolutely reliable. She has described
the incident very clearly and she has specifically named the Appellant
as the assailant. There is no reason to discard her evidence. This is a
strong evidence against the Appellant. Her evidence is corroborated
by the evidence of recovery of knife at the instance of the Appellant.
The knife was found having blood stains. The eye witness has
identified the knife in the Court. The evidence of the eye witness is
also corroborated by the medical evidence. She was a natural
witness, as discussed earlier. PW-1 has also proved the motive for
commission of offence. Non-examination of Kamal Bahadur Singh
makes no difference to the decision of this case. His evidence would
not have thrown any light on any other important aspect. He was
not an eye witness to the incident. The phone call, referred to by PW-
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1, indicated that the deceased was having a heated exchange with
someone on the other end., However, this would not make any
difference as PW-1 had actually seen the incident of assault
committed by the Appellant. In that context even if there is no
investigation regarding that phone call, it does not affect the
prosecution case.
29. As a result of this discussion, we are of the opinion that
the prosecution has proved its case beyond reasonable doubt. The
Appellant is rightly convicted and sentenced for commission of the
offence punishable under Section 302 of IPC and under Sections 37
read with 135 of the Maharashtra Police Act. Therefore, we do not
see any reason to set aside the conviction and the sentence imposed
on the Appellant. With the result, the Appeal is dismissed. With
dismissal of the Appeal, the connected Application is also disposed
of.
( SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
PRADIPKUMAR
PRAKASHRAO
DESHMANE Deshmane (PS)
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